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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Raymond L. Britton filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. This award arises out of the remand ordered by the Authority in United States Department of the Army, HQ, III Corps and Ft. Hood, Ft. Hood, Texas, 56 FLRA 544 (2000) (Ft. Hood). The Union filed an opposition to the Agency's exceptions.

On remand from the Authority, the Arbitrator addressed the Authority's request for an explanation of "the requirements and basis" for the initial award. Ft. Hood, 56 FLRA at 547. For the reasons set forth below, we conclude that the award is deficient under § 7122(a) of the Statute. Accordingly, we grant the exceptions and set aside the award.

II. Background and Arbitration Award

A. Initial Award and Authority's Decision

In his initial award, the Arbitrator resolved the Union's grievance alleging that the Agency "violated Article 39 of the parties' collective bargaining agreement by failing to notify the Union that the grievant had been reassigned and by assigning the grievant higher-graded, supervisory duties without pay." [n1]Ft. Hood, 56 FLRA at 544. The Arbitrator found that the Agency "violated Article 39 . . . by requiring or allowing the grievant to perform supervisory duties that were not assigned to her or were not in her job description and that 'she is entitled to be compensated for the performance of those duties.'" Id. at 545, quoting the Award at 5. As his award, the Arbitrator sustained the grievance.

On review of the Agency's exceptions, the Authority held, based on precedent, that an employee may be compensated for the temporary performance of higher-graded duties based on a provision of a collective bargaining agreement making temporary promotions mandatory for details to higher-graded positions. However, the Authority also held that an arbitrator's award ordering compensation at the pay rate of the higher-graded position is deficient under the Back Pay Act if the arbitrator fails to identify the provision of the agreement mandating the requisite temporary promotion to that position. Because the Arbitrator sustained the Union's grievance without explicitly ordering any particular relief, it was not clear whether he was requiring that the grievant be paid at the supervisory rate or on what mandatory contractual provision he relied for such a requirement.

The Authority stated that "if the Arbitrator did intend his award to require the Agency to pay the grievant at the supervisory rate for the performance of supervisory duties, the Arbitrator did not identify the source of the nondiscretionary policy warranting the temporary promotion of the grievant." Ft. Hood, 56 FLRA at 547. Because the Arbitrator's award was unclear in both respects, the Authority concluded that it could not determine whether the award was deficient under the Back Pay Act and remanded it for clarification as to: (1) whether, in sustaining the grievance, the Arbitrator intended to require the Agency to compensate the grievant at the supervisory rate; and (2) the collective bargaining agreement provision upon which he relied to authorize the temporary promotion that would be the necessary precondition for pay at the supervisory rate.

B. Award on Remand

On remand, the Arbitrator's award, in its entirety, provides as follows:

While the Union did not request a remedy during the hearing, it is the intent of the Arbitrator that the [g]rievant
be made whole as follows: 1) Reassign [the grievant] to her original position with the [ v56 p1122 ] proper paperwork;
and 2) pay [the grievant] for the period of time she performed higher[-]grade duties.

Award at 1.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award is deficient under § 7122(a) of the Statute because it is contrary to the Back Pay Act. In particular, the Agency argues that the Arbitrator did not "identify any nondiscretionary policies requiring" that the grievant be paid at the supervisory rate for temporarily performing supervisory duties. Exceptions at 4. According to the Agency, consistent with the Authority's decision in Ft. Hood and other Authority precedent, because the Arbitrator's requirement that the grievant be paid at the supervisory rate is not based on any such nondiscretionary policies, payment at that rate is not warranted under the Back Pay Act.

The Agency also contends that the portion of the Arbitrator's clarified award requiring that the grievant be reassigned to her old position is moot because the grievant is no longer employed by the Agency.

B. Union's Opposition

The Union notes that Article 39 pertains to details of employees to higher-graded duties and that it is undisputed that the grievant performed higher-graded duties. The Union contends that a violation of a contractual provision is an unjustified or unwarranted personnel action under the Back Pay Act and Office of Personnel Management regulations. The Union also contends that the Authority is an appropriate authority under those regulations to direct the correction of such an unjustified personnel action.

The Union does not address the Agency's contention that a portion of the award is moot.

IV. Analysis and Conclusions

A. Standard of Review

Because the Agency claims that the award is contrary to law, namely, the Back Pay Act, we review the exceptions de novo. See United States Customs Service v. FLRA, 43 F.3d 682, 686, 686-87 (D.C. Cir. 1994). See also NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (if the arbitrator's decision is challenged on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

B. The Award is Contrary to Law

In its initial decision in this case, the Authority made clear the requirements for entitlement to compensation at the rate of pay for performing the work of a higher-graded position under the Back Pay Act. The Authority stated as follows:

An employee may be compensated for the temporary performance of the duties of a higher-graded position
based on an agency regulation or collective bargaining provision making temporary promotions mandatory for
details to higher-graded positions. . . . However, where an arbitrator fails to identify a non-discretionary agency
policy set forth in an agency regulation or a collective bargaining agreement provision that would entitle a
grievant to backpay for performing the duties of a higher-graded position, there is no unjust[ified] or unwarranted
personnel action which would entitle the grievant to an award of backpay under the Back Pay Act.

Ft. Hood, 56 FLRA at 546.

Thus, we made clear to the parties and the Arbitrator that in order for any award of backpay to the grievant at the supervisory rate to be consistent with the Back Pay Act, it would have to be based on a non-discretionary policy, set forth in a collective bargaining agreement provision or other authority, mandating a temporary promotion for performing higher-graded duties. The Arbitrator did not identify, or base his award on, any such non-discretionary policy. Consequently, the award requiring the Agency to compensate the grievant at the supervisory rate is contrary to the Back Pay Act and, in that respect, is deficient. We will set aside that portion of the award. [n2]

V. Decision

The award is set aside.

Footnote # 1 for
56 FLRA No. 200

The text of Article 39 is set forth in the Appendix to the Authority's decision in Ft. Hood.

Footnote # 2 for
56 FLRA No. 200

It is undisputed that the grievant is no longer employed by the Agency and that the portion of the award requiring that the
grievant be reassigned to her former position is moot. See NLRB, 50 FLRA 88, 93 (1995). Consequently, we will also set aside
that portion of the award. Cf. United States Small Business Admin., 55 FLRA 179, 183 (1999) (award ordering placement of grievant
not rendered moot by removal of employee because requirement of change of position may be viable if grievant reinstated).